2018 PLP 757 (YLR)

KHADIM HUSSAIN M. SHAIKH, J.

Through this petition, the petitioner has called in question order dated 15.08.2015, passed by Judicial Magistrate-VI, Karachi, East, whereby the learned Magistrate approved the report in Class "C" with the observations that the complainant may avail the civil remedies available to him.

2. Learned counsel for the petitioner has mainly contended that Muhammad Naeem and others are named in the FIR No.602 of 2012, for offences under sections 420, 406 and 34, P.P.C. registered at Police Station Aziz Bhatti, Karachi, lodged by the petitioner; that the learned Magistrate without applying his judicious mind has passed the impugned order, which, per him, is illegal and not sustainable.

3. Conversely, learned A.P.G has mainly contended that the impugned order dated 15.8.2015 passed by the learned Judicial Magistrate is a well-reasoned order and there is no illegality therein.

4. We have considered the arguments advanced by the learned Counsel for the petitioner and the learned APG for the State and have gone through the material available on the record.

5. From a perusal of the record, it would be seen that there is dispute between the petitioner, namely, Muhammad Taufique Razzaq and Muhammad Javed Dandia over the business, being working partners in the name and style of "City Marketing Services"; that such dispute was settled between them on 01.09.2012, whereby it was agreed that after final audit by Chartered Accountant both parties will agree on balance sheet; and, thus in our humble view the matter, involved in the instant case, is purely of a civil nature; and while passing the impugned order dated 15.8.2015, the learned Judicial Magistrate has applied his judicious mind. The relevant observations of the learned Magistrate in the impugned order are reproduced here: "It is observed that for every criminal case to constitute an offence criminal intent is necessary and in the present case charges of cheating and criminal breach of trust also require fraudulent and dishonest intention/mens rea at the time of performing of act to from an offence. (Reference may be made to 1982 SCMR 788, 1969 SCMR 564, PLD 1989 SC 435). In this case admittedly both parties through a settlement dated 01.09.2012, agreed to have final audit by a chartered accountant and it was further agreed that both parties will abide by the balance sheet which after audit had to be finalized by the 10.09.2012, but the complainant had got this FIR lodged on 06.02.2012, before expiry of agreed time. It is observed that with these facts there may be right and liabilities of complainant against the accused person but even if these facts considered to be true on its total account lacks criminal intent/mens rea on part of accused persons which is necessary for proceeding against accused persons in a criminal case."

6. Manifestly, the petitioner has been making attempts to convert the dispute purely of a civil nature into criminal proceedings obviously with intent to put the proposed accused (who are not arrayed as party to these proceedings) in trouble and agony of criminal trial. Accordingly, the instant petition being devoid of merit, deserves to be dismissed.

7. Above are the reasons of short order announced by us on 21.3.2017, whereby this petition was dismissed. WA/M-161/Sindh Petition dismissed.